73 Wis. 217 | Wis. | 1888
This action was brought against Edgar Bolles and Susan Solles, by the respondents, to obtain judgment against the appellant Edgar Solles for the value of a bill of lumber claimed to have been sold to him by the respondents, to be used, and which was in fact used, by him in constructing a dwelling-house upon the lands of the appellant Susan Solles, and' to have the amount found due the respondents declared a lien upon the building and lands of said Susan Solles. Susan Solles wras the wife of Edgar Solles. On the trial in the circuit court the respondents obtained a personal judgment against Edgar Solles for the amount of their claim, and the court adjudged the same a lien upon the lands of said Susan Solles, and directed the same to be sold for the payment of the judgment. Both the defendants appealed to this court. Since the appeal was taken the said Susan Solles died, and her administrator has been substituted as appellant in her place.
On the part of the appellants it is alleged as error that the judgment in favor of the respondents against the appellant Edgar Solles is not supported by the evidence. The controversy on this point is that the appellants claim that the materials sold bv the respondents, and which were used in the construction of the dwelling-house in question, were sold to one Benz, and not to said Solles. The evidence clearly shows that as between Edgar Solles and Benz, the latter was bound to furnish and pay for all the materials
The appellants also allege as error that the court adjudged that the respondents were entitled to a lien upon the dwelling-house and the forty acres of land upon which it was erected, for the sum so found due to them from the appellant Edgar Solles. It is admitted that Susan Solles, the wife of Edgar Solles, owned the land on which the house was built; that she knew that it was being built by her husband on her land, at the time of its construction, and that she consented that it should be built on her land. She alleges that she consented that it should be built on her land under the following circumstances: Her husband, Edgar Solles, had received as pension money about $900, and he proposed to use that money in building a house on her land. He made a contract with one Benz, by which the said Benz was to furnish all the materials and do all the work in the construction of said dwelling-house on her land, the husband to furnish all the money to pay said Benz the amount to become due on his contract. And they claim that Edgar Solles has paid said Benz the full amount due on
In view of the statutes upon the subject, we think the learned circuit judge was right in his view of the case. Previous to the enactment of ch. 349, Laws of 1885, this court had decided that under the statutes of this state relating to mechanics’ and other liens, the interest of a person in real estate, not acquired after the lien attached, upon which a building or other improvement was erected or made, could not be sold to satisfy such lien unless the person so interested and owning the same was personally liable for the paj'ment of the debt which was claimed to be a lien. This rule, however, did not apply to the lien of a subcontractor. See Wheeler v. Hall, 41 Wis. 447; Lauer v. Bandow, 43 Wis. 556; Dewey v. Fifield, 2 Wis. 82; Rees v. Ludington, 13 Wis. 277, 281. It had also been held by this court that a person having a lien under the statute upon a
In 1885 the legislature amended the lien law bj7 adding to said sec. 3314 the following: “ And shall also attach to and be a lien upon the real property of any person on whose premises such improvements are made, such owner having knowledge thereof and consenting thereto.” So that the section reads, after stating the kinds of buildings, structures, and improvements made upon real property, upon which, for the materials furnished or labor performed in the construction thereof, the persons so furnishing the materials or doing the work may have a lien, as follows: “ Such lien shall be prior to any other lien which originates subsequent to the commencement of the construction, repair, removal, or work aforesaid, or upon such dwelling-house, building, machinery, bridge, wharf, or erection thereon, well, fountain, fence, water, lot, or land, and shall also attach to and be a lien upon the real property of any person on whose premises such■ improvements are made, such owner having knowledge thereof and consenting thereto, and
It is very evident that this statute of 1885 was intended to change the law as theretofore existing in this state, as interpreted by the decisions of this court, by extending the lien of the mechanics and others so as to extend to and cover the interest of persons in the' real estate upon which the kind of improvements designated in said sec. 3314, R. S., were made, other than the person or persons incurring debts for making such improvements. Of the right of the legislature to extend the lien as contemplated by said amendment there can be no reasonable doubt. Flor can there be any just cause of complaint by the owner of the real estate upon which the improvement is made. He has the whole benefit of the improvement made, and it is in furtherance of justice and equity that his property, which is presumed to have been enhanced in value by the labor or materials furnished, should pay for them. The amendment is supported on the same grounds that all other liens for work or materials are supported.
The statute seems to us to admit of but one construction, and that is the construction put upon it bjr the learned circuit judge. If the owner permits a husband or wife, child, parent, or a stranger to erect a building on his or her land, with his or her knowledge and consent, under the clear meaning of the statute his or her interest in the real estate is charged with a lien for the unpaid work or materials.' We cannot amend the statute or qualify its language by saying that his or her interest in the land shall not be chargeable with
There was no dispute as to these facts on the trial in the court below, and the other material issue, viz., whether the lumber was sold to Edgar Bolles and not to Benz, was found against the appellants upon sufficient evidence.
By the Court.— The judgment of the circuit court is affirmed.